Representing Immigrant Children

1. Representing Immigrant Children Midwest Immigrant & Human Rights Center Katten, Muchin & Rosenman LLP September 21, 2005

2. MIHRC’s Pro Bono Children’s Program The Midwest Immigrant & Human Rights Center (MIHRC), a program of Heartland Alliance for Human Needs & Human Rights, is a non-profit, immigrant legal aid organization. MIHRC provides direct service to and advocacy on behalf of the most impoverished and needy child refugees, asylum seekers and immigrants.

3. Who are MIHRC’s child clients? • Immigrant children and youth who have suffered persecution, abuse, abandonment, family violence, forced labor, violent crime • Detained & non-detained • From around the world • Residing or detained in IL, IN, MI, WI

4. What we do… • Case screening, assessment and acceptance • Placement with pro bono attorneys • Case management • Attorney support and technical assistance

5. Definition: Unaccompanied Minor • Under 18 years of age • No parent or legal guardian in the United States **MIHRC also works with youth up to 21.**

6. How U.S. Immigration Law Treats Unaccompanied Minors • In many ways, no different than adults • Immigration relief is separate from care/custody • Flores Settlement Agreement • Homeland Security Act of 2002 • Office of Refugee Resettlement, Division of Unaccompanied Children (DUCs)

7. If a minor is detained… • In federal custody; case is before the Executive Office for Immigration Review (EOIR), Immigration Court • International Children’s Center (ICC), Chicago • Shelter-care facility; minimum security • SW Indiana Youth Village, Vincennes, IN • Secure and minimum security facility

8. Child arrested DHS Where is the child living?What is happening in the case? ORR DOJ: EOIR Immigration Court Int’l Children’s Center Board of Immigration Appeals (BIA) Transfer to other facility Release to relative Federal Court Return to home country

9. Adults in a detained child’s life • Shelter staff • Assist with family reunification • Provide some counseling • Very limited confidentiality (mental health) • Child Protection Advocate • Friend to child • No confidentiality • ORR Field Coordinator • Liaison b/w shelter and ORR • No confidentiality • Attorney

10. Adults in a non-detained child’s life • Relative/sponsor • No confidentiality • Attorney

11. United States Immigration Proceedings Child arrested/referred into immigration proceedings • Citizenship & Immigration Services • SIJ • VAWA • Asylum • T / U Master Calendar Hearing Merits Hearing Asylum / Adjustment (for “green card”)

12. Most common remedies • Asylum • Special Immigrant Juvenile Status • T&U Visas • VAWA • Voluntary Departure

13. Asylum: Definition • “[A]ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). • International standard: UN Protocol Relating to the Status of Refugees, Art I(2)

14. Asylum: Theories • Individual activity or status: child Falun Gong practitioner; race/ethnicity • Imputed political opinion: Indian child targeted due to political activities of father • Particular social group: • “disabled children” • “children actively recruited by gangs who refuse to join because they oppose gangs”

15. Asylum: Using Child Status • Definition of persecution: persecution is a function of age, experience and maturity • “Well-founded fear”: age, experience and maturity will inform • Reasonableness of internal relocation: children often dependent on parents • Credibility: Memory, details and information are different for children • Expert witnesses: • Child mental health practitioners • Children’s rights advocates

16. Special Immigrant Juvenile Visa • Under 21 • Has been abused, abandoned or neglected by parents • Dependent on juvenile court which has determined child to be eligible for “long-term foster care” • Reunification with parents not feasible • Not in child’s interest to return to country of origin

17. How to apply for SIJ? • In federal custody: • Request ICE for “specific consent” (May 2004 CIS memo) • Show bona fides of SIJ case • CPA may be able to help • Non-detained/”specific consent” granted • File petition for dependency with juvenile court • Obtain SIJ special findings order

18. How to apply for SIJ? (ctd.) • Submit SIJ application (I-360) to CIS • Submit adjustment application (I-485) to CIS or to the Immigration Court • Result: Child is lawful permanent resident (LPR)

19. T Visa • Relief for children under 18 who are “victims of a severe form of trafficking” • Sex trafficking: induced to perform a commercial sex act • Labor trafficking: using force, fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage or slavery

20. T Visa (ctd.) • Requirements • Victim of a severe form of trafficking • Physically present in the U.S. on account of trafficking • Would suffer extreme hardship involving unusual and severe harm if removed from the U.S. • Law enforcement cooperation requirement waived for children under 18, although they may be subpoenaed

21. T Visa (ctd.) • T visa = 3 years; can then apply for residency • T visa holders under 21 can petition for (1) parents; (2) siblings under 18; (3) spouse/children • “Certified” child victims are eligible to live/receive services through Unaccompanied Refugee Minors (URM) program • Please contact MIHRC immediately if you think you have identified trafficking.

22. U Visas, VAWA • U: Has been a victim of a violent crime (e.g. domestic violence, sexual assault, kidnapping) in US + cooperating with law enforcement (unless under 16) • VAWA: Has been victim of domestic violence and parent-abuser is resident or US citizen

23. When no relief is available…Voluntary Departure v. Removal • In lieu of removal • Child pays cost of return • Ability to return to the US legally • Government pays cost of return • 10 year bar on reentry • criminal penalties/ fine upon reentry

24. THANK YOU! Midwest Immigrant & Human Rights Center Mary Meg McCarthy Elissa Steglich Karen Donoso Stevens (312) 660-1305 kstevens@heartlandalliance.org